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Basel Committee on Banking Supervision

An Assessment of Governance and Legitimacy- Part II

Series:

Maziar Peihani

Part I of this project overviewed the literature on the Basel Committee of Banking Supervision (BCBS) and provided a primer on the Committee’s governance and functions. It also engaged with the current theories on legitimacy and discussed what legitimacy meant for the global governance of banking and how it could be assessed. This part investigates the BCBS’s governance, operation, and policy outcomes to determine the extent to which it is and has been legitimate. The assessment is conducted based on three principles of reasoned decision making, transparency, and accountability. Maziar Peihani argues that the BCBS has gradually become a more legitimate institution but there still exists significant room for improvement. He highlights a number of areas for reform and sets out policy prescriptions to enhance the BCBS’s legitimacy.

Basel Committee on Banking Supervision

A Primer on Governance, History, and Legitimacy -- Part I

Series:

Maziar Peihani

The Basel Committee on Banking Supervision (BCBS) was established in 1974 as an informal group of central bankers and bank supervisors with the mandate to formulate supervisory standards and guidelines. Although the Committee does not have any formal supranational authority, it is the de facto global banking regulator and its recommendations have been widely implemented by member and non-member states. Maziar Peihani investigates the BCBS’s governance, operation, and policy outcomes to determine the extent to which it is and has been legitimate. The project is comprised of two parts. This part overviews the literature on the BCBS, outlines its contribution, and provides a primer on the Committee’s governance and functions. In addition, it engages with the current theories on legitimacy and discusses what legitimacy means for the global governance of banking and how it can be assessed.

The Negotiability of Debt in Islamic Finance

An Analytical and Critical Study

Series:

Abdulaziz Ahmed Almezeini

The challenges posed by the non-liquidity and non-diversity of the Islamic debts market make the market an inefficient tool on contributing to Muslim economic growth. Islamic scholars and experts created sukuk as an Islamic debt instrument to avoid riba (usury), but the sukuk market (especially in the Gulf) still struggles with the prohibition of the trade of debt due to the prohibition of the two Fiqh Academies.
Trading and securitizing debts should be permitted in Islamic law, with one condition, that the debt should be considered low risk. This new rule, the permissibility of trading debts, is supported by three Islamic legal bases, istishab, qiyas, and maslaha, which are recognized by all four Islamic schools of legal thought. Furthermore, permitting the trading of debts is more consistent with the principles and theories of Islamic law than is forbidding it. It is consistent with the obligations theory that debt is a personal right. It is consistent with the mal (property) theory that debt may be sold according to the three Islamic schools of legal thought, all of which consider debt as property. It is consistent with other modern Islamic financial transactions that are permitted by the two Fiqh Academies, such as tawarruq and murabaha.

Series:

William J. Davey

Also available as an e-book

International trade is conducted mainly under the rules of the World Trade Organization. Its non-discrimination rules are of fundamental importance. In essence, they require WTO members not to discriminate amongst products of other WTO members in trade matters (the most favoured- nation rule) and, subject to permitted market-access limitations, not to discriminate against products of other WTO members in favour of domestic products (the national treatment rule). The interpretation of these rules is quite difficult. Their reach is potentially so broad that it has been felt that they should be limited by a number of exceptions, some of which also present interpretative difficulties. Indeed, one of the principal conundrums faced by WTO dispute settlement is how to strike the appropriate balance between the rules and exceptions. Davey explores the background and justification for the non-discrimination rules and examines how the rules and the exceptions have been interpreted in WTO dispute settlement. He gives considerable attention to whether the exceptions give sufficient discretion to WTO members to pursue their legitimate non-trade policy goals.

Series:

Guiguo Wang

Also available as an e-book

The World Trade Organization (“WTO”) resulted from globalization, through which national law provisions are internationalized and international norms are domesticated. The WTO does not permit reservation by its members who are obliged to ensure the compliance of their laws, policies and other measures. Once a member is found to have violated its obligations, it must rectify the non-compliance measures to avoid retaliation. The quasi-automatic approval procedure of the WTO Dispute Settlement Body has proved to be effective in ensuring the compliance by members and consistency of interpretation of the WTO Agreement. As the multilateral trade institution covers a wide range of sectors from trade in goods and services, and intellectual property to investment and the measures of the members include laws and regulations, administrative decisions and judicial rulings, the impacts of the WTO on the members’ legal systems are hugely profound and long lasting. In some cases, for the purpose of joining the WTO, the legal systems of the members concerned have been through significant changes.

Series:

José E. Alvarez

This monograph considers the ramifications of the legal regime that governs transborder capital flows. This regime consists principally of a network of some 3,000 investment treaties, as well as a growing body of arbitral decisions. Professor Alvarez contends that the contemporary international investment regime should no longer be described as a
species of territorial “empire” imposed by rich capital exporters on capital importers. He examines the evolution of investment treaties and investor-State jurisprudence constante and identifies the connections between these and general trends within public international law, including the increased resort to treaties (“treatification”), growing risks to the law’s consistency (“fragmentation”), and the proliferation of forms of international adjudication (“judicialization”). Professor Alvarez also considers whether the regime’s efforts to “balance” the needs of non-State investors and sovereigns ought to be characterized as “global administrative law," as a form of “constitutionalization,” or as an increasingly human-rights-centred enterprise.

Losing the Global Development War

A Contemporary Critique of the IMF, the World Bank and the WTO

John Head

This book offers a new perspective in examining the key global economic organizations - the International Monetary Fund, the World Bank (and its regional counterparts), and the World Trade Organization. Aimed at ordinary informed readers, the text draws upon the author's many years of familiarity with these organizations to evaluate them from a legal and policy perspective, touching on issues of "mission creep," "democracy deficit," and more. The book depicts such issues as the central struggles in a "Global Development War" that is now being lost because of certain ideological and institutional failings that currently afflict the global institutions. That war can be won, the author asserts, only by adopting an ideology of liberal, intelligent, participatory, multilateral, and sustainable human development.

Terence Stewart, Amy Dwyer, Patrick McDonough, Marla Prado and Amy Karpel

This study looks at how the WTO’s existing rules, such as antidumping, antisubsidy and safeguard rules, have aided trade expansion and how certain issues, such as exchange rate disequilibrium, if left unexamined, are likely to create future trade problems and reduce trade opportunities.



Published under the Transnational Publishers imprint.

G. Gregory Letterman

Identifying the relevant multilateral institutions and multinational organizations involved in particular aspects of international finance and trade often proves to be difficult. This book makes that process easy while providing valuable descriptions of and insights into those institutions and organizations. Chapter topics examine multilateral institutions and organizations:



• generally and their major umbrella organization—the United Nations;

• concerned with national currencies, national solvency, financial institutions and securities exchange, and international financial transactions and securities;

• promoting economic development;

• regulating international trade;

• dealing with international product and performance standards, standardized legal commercial rules, and common usages and documents through international conventions and treaties, the harmonization of national commercial laws, and accepted sectoral practices;

• protecting international intellectual property rights;

• managing international environmental, commodities, and natural resources matters;

• resolving international disputes; and

• involved with other international finance and trade matters.

No other book now in print covers this topic. None is likely to ever do so with such thoroughness and clarity.


Published under the Transnational Publishers imprint.

Terence Stewart

In a significant move to further the purpose of the World Trade Organization (WTO), a decision was reached at the Ministerial meeting in Doha, Qatar, to launch a new round of trade negotiations.
Coming more than seven years after the Uruguay Round, the new round with a much heavier emphasis on issues of interest to developing nations and will include various modifications to existing WTO agreements in the name of addressing "implementation" issues.

The launch of the new round is heralded by many as significant considering the current state of world affairs and the WTO’s need to establish credibility after the Seattle debacle. This volume identifies the major elements of the upcoming negotiations and reviews the major decisions taken in Doha.

Extensive appendices provide primary source documentation of Ministerial Declarations and Implementation Decisions.



Published under the Transnational Publishers imprint.